Book II. Of Laws Directly Derived from the Nature of Government
1. Of the Nature of the three different Governments. There are three
species of government: republican, monarchical, and despotic. In order
to discover their nature, it is sufficient to recollect the common
notion, which supposes three definitions, or rather three facts: that a
republican government is that in which the body, or only a part of the
people, is possessed of the supreme power; monarchy, that in which a
single person governs by fixed and established laws; a despotic
government, that in which a single person directs everything by his own
will and caprice.
This is what I call the nature of each government; we must now inquire
into those laws which directly conform to this nature, and consequently
are the fundamental institutions.
2. Of the Republican Government, and the Laws in relation to
Democracy.[1] When the body of the people is possessed of the supreme
power, it is called a democracy. When the supreme power is lodged in the
hands of a part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in
others the subject.
There can be no exercise of sovereignty but by their suffrages, which
are their own will; now the sovereign's will is the sovereign himself.
The laws therefore which establish the right of suffrage are fundamental
to this government. And indeed it is as important to regulate in a
republic, in what manner, by whom, to whom, and concerning what,
suffrages are to be given, as it is in a monarchy to know who is the
prince, and after what manner he ought to govern.
Libanius[2] says that at Athens a stranger who intermeddled in the
assemblies of the people was punished with death. This is because such a
man usurped the rights of sovereignty.
It is an essential point to fix the number of citizens who are to form
the public assemblies; otherwise it would be uncertain whether the
whole, or only a part of the people, had given their votes. At Sparta
the number was fixed at ten thousand. But Rome, designed by Providence
to rise from the weakest beginnings to the highest pitch of grandeur;
Rome, doomed to experience all the vicissitudes of fortune; Rome, who
had sometimes all her inhabitants without her walls, and sometimes all
Italy and a considerable part of the world within them; Rome, I say,
never fixed the number[3] and this was one of the principal causes of
her ruin.
The people, in whom the supreme power resides, ought to have the
management of everything within their reach: that which exceeds their
abilities must be conducted by their ministers.
But they cannot properly be said to have their ministers, without the
power of nominating them: it is, therefore, a fundamental maxim in this
government, that the people should choose their ministers -- that is,
their magistrates.
They have occasion, as well as monarchs, and even more so, to be
directed by a council or senate. But to have a proper confidence in
these, they should have the choosing of the members; whether the
election be made by themselves, as at Athens, or by some magistrate
deputed for that purpose, as on certain occasions was customary at Rome.
The people are extremely well qualified for choosing those whom they are
to entrust with part of their authority. They have only to be determined
by things to which they cannot be strangers, and by facts that are
obvious to sense. They can tell when a person has fought many battles,
and been crowned with success; they are, therefore, capable of electing
a general. They can tell when a judge is assiduous in his office, gives
general satisfaction, and has never been charged with bribery: this is
sufficient for choosing a prętor. They are struck with the magnificence
or riches of a fellow-citizen; no more is requisite for electing an
edile. These are facts of which they can have better information in a
public forum than a monarch in his palace. But are they capable of
conducting an intricate affair, of seizing and improving the opportunity
and critical moment of action? No; this surpasses their abilities.
Should we doubt the people's natural capacity, in respect to the
discernment of merit, we need only cast an eye on the series of
surprising elections made by the Athenians and Romans; which no one
surely will attribute to hazard.
We know that though the people of Rome assumed the right of raising
plebeians to public offices, yet they never would exert this power; and
though at Athens the magistrates were allowed, by the law of Aristides,
to be elected from all the different classes of inhabitants, there never
was a case, says Xenophon,[4] when the common people petitioned for
employments which could endanger either their security or their glory.
As most citizens have sufficient ability to choose, though unqualified
to be chosen, so the people, though capable of calling others to an
account for their administration, are incapable of conducting the
administration themselves.
The public business must be carried on with a certain motion, neither
too quick nor too slow. But the motion of the people is always either
too remiss or too violent. Sometimes with a hundred thousand arms they
overturn all before them; and sometimes with a hundred thousand feet
they creep like insects.
In a popular state the inhabitants are divided into certain classes. It
is in the manner of making this division that great legislators have
signalised themselves; and it is on this the duration and prosperity of
democracy have ever depended.
Servius Tullius followed the spirit of aristocracy in the distribution
of his classes. We find in Livy[5] and in Dionysius Halicarnassus,[6] in
what manner he lodged the right of suffrage in the hands of the
principal citizens. He had divided the people of Rome into 193
centuries, which formed six classes; and ranking the rich, who were in
smaller numbers, in the first centuries, and those in middling
circumstances, who were more numerous, in the next, he flung the
indigent multitude into the last; and as each century had but one
vote[7] it was property rather than numbers that decided the election.
Solon divided the people of Athens into four classes. In this he was
directed by the spirit of democracy, his intention not being to fix
those who were to choose, but such as were eligible: therefore, leaving
to every citizen the right of election, he made[8] the judges eligible
from each of those four classes; but the magistrates he ordered to be
chosen only out of the first three, consisting of persons of easy
fortunes.[9]
As the division of those who have a right of suffrage is a fundamental
law in republics, so the manner of giving this suffrage is another
fundamental.
The suffrage by lot is natural to democracy; as that by choice is to
aristocracy.[10]
The suffrage by lot is a method of electing that offends no one, but
animates each citizen with the pleasing hope of serving his country.
Yet as this method is in itself defective, it has been the endeavour of
the most eminent legislators to regulate and amend it.
Solon made a law at Athens that military employments should be conferred
by choice; but that senators and judges should be elected by lot.
The same legislator ordained that civil magistracies, attended with
great expense, should be given by choice; and the others by lot.
In order, however, to amend the suffrage by lot, he made a rule that
none but those who presented themselves should be elected; that the
person elected should be examined by judges[11] and that every one
should have a right to accuse him if he were unworthy of the office:[12]
this participated at the same time of the suffrage by lot, and of that
by choice. When the time of their magistracy had expired, they were
obliged to submit to another judgment in regard to their conduct.
Persons utterly unqualified must have been extremely backward in giving
in their names to be drawn by lot.
The law which determines the manner of giving suffrage is likewise
fundamental in a democracy. It is a question of some importance whether
the suffrages ought to be public or secret. Cicero observes[13] that the
laws[14] which rendered them secret towards the close of the republic
were the cause of its decline. But as this is differently practised in
different republics, I shall offer here my thoughts concerning this
subject.
The people's suffrages ought doubtless to be public[15] and this should
be considered as a fundamental law of democracy. The lower class ought
to be directed by those of higher rank, and restrained within bounds by
the gravity of eminent personages. Hence, by rendering the suffrages
secret in the Roman republic, all was lost; it was no longer possible to
direct a populace that sought its own destruction. But when the body of
the nobles are to vote in an aristocracy[16] or in a democracy the
senate[17] as the business is then only to prevent intrigues, the
suffrages cannot be too secret.
Intriguing in a senate is dangerous; it is dangerous also in a body of
nobles; but not so among the people, whose nature is to act through
passion. In countries where they have no share in the government, we
often see them as much inflamed on account of an actor as ever they
could be for the welfare of the state. The misfortune of a republic is
when intrigues are at an end; which happens when the people are gained
by bribery and corruption: in this case they grow indifferent to public
affairs, and avarice becomes their predominant passion. Unconcerned
about the government and everything belonging to it, they quietly wait
for their hire.
It is likewise a fundamental law in democracies, that the people should
have the sole power to enact laws. And yet there are a thousand
occasions on which it is necessary the senate should have the power of
decreeing; nay, it is frequently proper to make some trial of a law
before it is established. The constitutions of Rome and Athens were
excellent. The decrees of the senate[18] had the force of laws for the
space of a year, but did not become perpetual till they were ratified by
the consent of the people.
3. Of the Laws in relation to the Nature of Aristocracy. In an
aristocracy the supreme power is lodged in the hands of a certain number
of persons. These are invested both with the legislative and executive
authority; and the rest of the people are, in respect to them, the same
as the subjects of a monarchy in regard to the sovereign.
They do not vote here by lot, for this would be productive of
inconveniences only. And indeed, in a government where the most
mortifying distinctions are already established, though they were to be
chosen by lot, still they would not cease to be odious; it is the
nobleman they envy, and not the magistrate.
When the nobility are numerous, there must be a senate to regulate the
affairs which the body of the nobles are incapable of deciding, and to
prepare others for their decision. In this case it may be said that the
aristocracy is in some measure in the senate, the democracy in the body
of the nobles, and the people are a cipher.
It would be a very happy thing in an aristocracy if the people, in some
measure, could be raised from their state of annihilation. Thus at
Genoa, the bank of St. George being administered by the people[19] gives
them a certain influence in the government, whence their whole
prosperity is derived.
The senators ought by no means to have the right of naming their own
members; for this would be the only way to perpetuate abuses. At Rome,
which in its early years was a kind of aristocracy, the senate did not
fill up the vacant places in their own body; the new members were
nominated by the censors.[20]
In a republic, the sudden rise of a private citizen to exorbitant power
produces monarchy, or something more than monarchy. In the latter the
laws have provided for, or in some measure adapted themselves to, the
constitution; and the principle of government checks the monarch: but in
a republic, where a private citizen has obtained an exorbitant
power,[21] the abuse of this power is much greater, because the laws
foresaw it not, and consequently made no provision against it.
There is an exception to this rule, when the constitution is such as to
have immediate need of a magistrate invested with extraordinary power.
Such was Rome with her dictators, such is Venice with her state
inquisitors; these are formidable magistrates, who restore, as it were
by violence, the state to its liberty. But how comes it that these
magistracies are so very different in these two republics? It is because
Rome supported the remains of her aristocracy against the people;
whereas Venice employs her state inquisitors to maintain her aristocracy
against the nobles. The consequence was that at Rome the dictatorship
could be only of short duration, as the people acted through passion and
not with design. It was necessary that a magistracy of this kind should
be exercised with lustre and pomp, the business being to intimidate, and
not to punish, the multitude. It was also proper that the dictator
should be created only for some particular affair, and for this only
should have an unlimited authority, as he was always created upon some
sudden emergency. On the contrary, at Venice they have occasion for a
permanent magistracy; for here it is that schemes may be set on foot,
continued, suspended, and resumed; that the ambition of a single person
becomes that of a family, and the ambition of one family that of many.
They have occasion for a secret magistracy, the crimes they punish being
hatched in secrecy and silence. This magistracy must have a general
inquisition, for their business is not to remedy known disorders, but to
prevent the unknown. In a word, the latter is designed to punish
suspected crimes; whereas the former used rather menaces than punishment
even for crimes that were openly avowed.
In all magistracies, the greatness of the power must be compensated by
the brevity of the duration. This most legislators have fixed to a year;
a longer space would be dangerous, and a shorter would be contrary to
the nature of government. For who is it that in the management even of
his domestic affairs would be thus confined? At Ragusa[22] the chief
magistrate of the republic is changed every month, the other officers
every week, and the governor of the castle every day. But this can take
place only in a small republic environed[23] by formidable powers, who
might easily corrupt such petty and insignificant magistrates.
The best aristocracy is that in which those who have no share in the
legislature are so few and inconsiderable that the governing party have
no interest in oppressing them. Thus when[24] Antipater made a law at
Athens that whosoever was not worth two thousand drachms should have no
power to vote, he formed by this method the best aristocracy possible;
because this was so small a sum as to exclude very few, and not one of
any rank or consideration in the city.
Aristocratic families ought therefore, as much as possible, to level
themselves in appearance with the people. The more an aristocracy
borders on democracy, the nearer it approaches perfection: and, in
proportion as it draws towards monarchy, the more is it imperfect.
But the most imperfect of all is that in which the part of the people
that obeys is in a state of civil servitude to those who command, as the
aristocracy of Poland, where the peasants are slaves to the nobility.
4. Of the Relation of Laws to the Nature of Monarchical Government. The
intermediate, subordinate, and dependent powers constitute the nature of
monarchical government; I mean of that in which a single person governs
by fundamental laws. I said the intermediate, subordinate, and dependent
powers. And indeed, in monarchies the prince is the source of all power,
political and civil. These fundamental laws necessarily suppose the
intermediate channels through which the power flows: for if there be
only the momentary and capricious will of a single person to govern the
state, nothing can be fixed, and of course there is no fundamental law.
The most natural, intermediate, and subordinate power is that of the
nobility. This in some measure seems to be essential to a monarchy,
whose fundamental maxim is: no monarch, no nobility; no nobility, no
monarch; but there may be a despotic prince.
There are men who have endeavoured in some countries in Europe to
suppress the jurisdiction of the nobility, not perceiving that they were
driving at the very thing that was done by the parliament of England.
Abolish the privileges of the lords, the clergy and cities in a
monarchy, and you will soon have a popular state, or else a despotic
government.
The courts of a considerable kingdom in Europe have, for many ages, been
striking at the patrimonial jurisdiction of the lords and clergy. We do
not pretend to censure these sage magistrates; but we leave it to the
public to judge how far this may alter the constitution. Far am I from
being prejudiced in favour of the privileges of the clergy; however, I
should be glad if their jurisdiction were once fixed. The question is
not whether their jurisdiction was justly established; but whether it be
really established; whether it constitutes a part of the laws of the
country, and is in every respect in relation to those laws: whether
between two powers acknowledged independent, the conditions ought not to
be reciprocal; and whether it be not equally the duty of a good subject
to defend the prerogative of the prince, and to maintain the limits
which from time immemorial have been prescribed to his authority.
Though the ecclesiastic power be so dangerous in a republic, yet it is
extremely proper in a monarchy, especially of the absolute kind. What
would become of Spain and Portugal, since the subversion of their laws,
were it not for this only barrier against the incursions of arbitrary
power? A barrier ever useful when there is no other: for since a
despotic government is productive of the most dreadful calamities to
human nature, the very evil that restrains it is beneficial to the
subject.
In the same manner as the ocean, threatening to overflow the whole
earth, is stopped by weeds and pebbles that lie scattered along the
shore, so monarchs, whose power seems unbounded, are restrained by the
smallest obstacles, and suffer their natural pride to be subdued by
supplication and prayer.
The English, to favour their liberty, have abolished all the
intermediate powers of which their monarchy was composed. They have a
great deal of reason to be jealous of this liberty; were they ever to be
so unhappy as to lose it, they would be one of the most servile nations
upon earth.
Mr. Law, through ignorance both of a republican and monarchical
constitution, was one of the greatest promoters of absolute power ever
known in Europe. Besides the violent and extraordinary changes owing to
his direction, he would fain suppress all the intermediate ranks, and
abolish the political communities. He was dissolving[25] the monarchy by
his chimerical reimbursements, and seemed as if he even wanted to redeem
the constitution.
It is not enough to have intermediate powers in a monarchy; there must
be also a depositary of the laws. This depositary can only be the judges
of the supreme courts of justice, who promulgate the new laws, and
revive the obsolete. The natural ignorance of the nobility, their
indolence and contempt of civil government, require that there should be
a body invested with the power of reviving and executing the laws, which
would be otherwise buried in oblivion. The prince's council are not a
proper depositary. They are naturally the depositary of the momentary
will of the prince, and not of the fundamental laws. Besides, the
prince's council is continually changing; it is neither permanent nor
numerous; neither has it a sufficient share of the confidence of the
people; consequently it is capable of setting them right in difficult
conjunctures, or of reducing them to proper obedience.
Despotic governments, where there are no fundamental laws, have no such
kind of depositary. Hence it is that religion has generally so much
influence in those countries, because it forms a kind of permanent
depositary; and if this cannot be said of religion, it may of the
customs that are respected instead of laws.
5. Of the Laws in relation to the Nature of a despotic Government. From
the nature of despotic power it follows that the single person, invested
with this power, commits the execution of it also to a single person. A
man whom his senses continually inform that he himself is everything and
that his subjects are nothing, is naturally lazy, voluptuous, and
ignorant. In consequence of this, he neglects the management of public
affairs. But were he to commit the administration to many, there would
be continual disputes among them; each would form intrigues to be his
first slave; and he would be obliged to take the reins into his own
hands. It is, therefore, more natural for him to resign it to a
vizir,[26] and to invest him with the same power as himself. The
creation of a vizir is a fundamental law of this government.
It is related of a pope that he had started an infinite number of
difficulties against his election, from a thorough conviction of his
incapacity. At length he was prevailed on to accept of the pontificate,
and resigned the administration entirely to his nephew. He was soon
struck with surprise, and said, "I should never have thought that these
things were so easy." The same may be said of the princes of the East,
who, being educated in a prison where eunuchs corrupt their hearts and
debase their understandings, and where they are frequently kept ignorant
even of their high rank, when drawn forth in order to be placed on the
throne, are at first confounded: but as soon as they have chosen a
vizir, and abandoned themselves in their seraglio to the most brutal
passions; pursuing, in the midst of a prostituted court, every
capricious extravagance, they would never have dreamed that they could
find matters so easy.
The more extensive the empire, the larger the seraglio; and consequently
the more voluptuous the prince. Hence the more nations such a sovereign
has to rule, the less he attends to the cares of government; the more
important his affairs, the less he makes them the subject of his
deliberations.
______
1. Compare Aristotle, Politics, vi. 2.
2. Declamations, 17, 18.
3. See the Considerations on the Causes of the Grandeur and Decline of
the Romans, 9.
4. Pp. 691, 693, ed. Wechel, 1596.
5. Bk. i.
6. Bk. iv, art. 15 et seq.
7. See in the Considerations on the Causes of the Grandeur and Decline
of the Romans, 9, how this spirit of Servius Tullius was preserved in
the republic.
8. Dionysius Halicarnassus, Eulogium of Isocrates, ii, p. 97, ed.
Wechel. Pollux, viii. 10, art. 130.
9. See Aristotle's Politics, ii. 12.
10. Ibid, iv. 9.
11. See the oration of Demosthenes, De Falsa legat., and the oration
against Timarchus.
12. They used even to draw two tickets for each place, one which gave
the place, and the other which named the person who was to succeed, in
case the first was rejected.
13. De Leg., i, iii.
14. They were called leges tabulares; two tablets were presented to each
citizen, the first marked with an A, for Antique, or I forbid it; and
the other with an U and an R, for Uti rogas, or Be it as you desire.
15. At Athens the people used to lift up their hands.
16. As at Venice.
17. The thirty tyrants at Athens ordered the suffrages of the
Areopagites to be public, in order to manage them as they pleased. --
Lysias, Orat. contra Agorat. 8.
18. See Dionysius Halicarnassus, iv, ix.
19. See Mr. Addison, Travels to Italy, p. 16.
20. They were named at first by the consuls.
21. This is what ruined the republic of Rome. See Considerations on the
Causes of the Grandeur and Decline of the Romans, 14, 16.
22. Tournefort, Voyages.
23. At Lucca the magistrates are chosen only for two months.
24. Diodorus, xviii, p. 601, ed. Rhodoman.
25. Ferdinand, king of Aragon, made himself grand master of the orders,
and that alone changed the constitution.
26. The Eastern kings are never without vizirs, says Sir John Chardin.